Thursday, March 28, 2013

Dogs that didn't bark: Open prosecutor files, reduced drug penalties

In the Texas House Criminal Jurisprudence Committee on Tuesday night, the spirit of the room was rather odd when Rep. Joe Moody presented his committee substitute on criminal discovery reform. No longer a reciprocal discovery bill, Moody laid out legislation featuring a one-sided requirement for the state to hand over evidence with no concomitant defense obligation. I'd heard rumor Sen. Ellis might do that on the senate side, but hadn't expected the change in Moody's version. (Happy day for the defense bar, but I hope it doesn't kill the bill. Becky Bernhardt has been working hard.) There was little testimony by anyone but some usual suspects (someone from the El Paso DA testified for it) and everyone's tone and posture was a bit like someone walking on eggshells. It felt like we were all sneaking something past our parents. Surely some prosecutors don't like the statutory give without any get but there wasn't remotely the sort of weeping and gnashing of teeth we heard later in the hearing over extending the Fourth Amendment to cell phone location. Can a one-sided discovery bill get through the Legislature? The reason it hasn't worked in the past is that prosecutors vowed to kill discovery legislation if it weren't "reciprocal." So they'd have to stand aside, as they did in the House on Tuesday night, or just lose their mojo for the bill to pass. I don't think the latter has happened quite yet so one suspects all they have to say on the subject, for now, is being said behind the scenes. How much of a game changer were the Michael Morton and Anthony Graves cases regarding prosecutorial misconduct? Have those episodes sufficiently altered the terms of debate on open files that a one-sided requirement can pass? Over the next month or two, we're about to find out.

Another notable dog that didn't bark in the House Criminal Jurisprudence meeting Tuesday night: Rep. Senfronia Thompson brought a pair of bills, previewed here, to reduce penalties for low-level drug possession from a state jail felony to a Class A misdemeanor and to disallow state jail felony charges for possessing trace amounts weighing less than 2 one-hundredths of a gram. One might have expected a protracted battle over these bills just a few sessions ago, but on Tuesday there was no significant opposition. Indeed, Rep. Lon Burnam asked Thompson if she'd like to send the bill to the local and consent calendar since it seemed to face no opposition, a wry suggestion since she chairs the Local and Consent committee. She replied smoothly that she thought the general calendar would be appropriate. Don't get me wrong: I was grateful. Waiting on a later bill, the last thing I wanted was for someone to launch a lengthy debate over the merits of the drug war. But I was pleasantly surprised to find the committee considered the idea relatively noncontroversial. The main concern from the dais appeared to be potential costs to county jails as opposed to "sending the wrong message," etc.. Surprisingly, given how many jobs it creates, the drug war found no champions on Tuesday.- at least none willing to stay into the evening when the bills were finally heard.

16 comments:

Anonymous said...

There's an interesting story behind how the newest version of the Ellis/Duncan discovery bill came to be and whose idea it actually was forego any reciprocal obligations on the side of the defense. The previous version of the bill was likely destined to die given the vocal opposition by TCDLA--which you've noted. You should do some checking and find out what really happened last week to change this dynamic and get the bill back on track. Interesting stuff! I think you'll be surprised.

Gritsforbreakfast said...

Tell us what you know, 8:52, let's start there. I'm sure there's quite a backstory, I'm just not privy to it.

Anonymous said...

The idea to drop reciprocal discovery from the bill originated with the prosecutors and TDCAA.

Anonymous said...

Pretty easy to smell rats here. Hope to learn more.

Mike Howard said...

That would be pretty shocking, 9:39!

Ryan Paige said...

It seems so weird that the state has to give prosecutors an incentive to follow the law and their professional ethics.

If prosecutors weren't repeatedly getting caught withholding Brady material, there'd be no call for an open discovery bill, but the answer to that has been, "give us something, and we'll agree to make it harder for us to hide what we've been required to turn over for at least half a century."

You shouldn't have to bribe someone to do what they're supposed to do already.

Anonymous said...

The idea to drop reciprocal discovery from the bill originated with the prosecutors and TDCAA.

Man, it's too bad the feds cut funding for all of those air control towers, what with all of those pigs flying around.

/I don't believe it

Rage

Anonymous said...

So call over to Ellis' or Duncan's office and find out for yourself why SB 1611 took such a dramatic shift in a week's time.

Anonymous said...

1252, that bill, in its various iterations, has been vigorously opposed by defense lawyers for years. It was proposed by prosecutors in the first place. To say that it was changed to omit reciprocal discovery because of their efforts is dishonest.

Rage

Shannon Edmonds said...

Sorry to blow your mind, Rage, but the anonymous poster is correct about the origin of the new language.

Cue porcine aviation in 3...2...1...

Anonymous said...

See the earlier post about dishonesty.

Rage

Anonymous said...

Rage, I assure you that the version of SB 1611 filed right at the bill filing deadline was unlike anything TDCAA, or for that matter TCDLA, had ever seen. It sure wasn't anything the prosecutors proposed. The bill passed out of committee is totally different and was supported, mostly, by both sides of the bar. And it only got to that point because Texas prosecutors decided to give up reciprocal discovery and go "open file" statewide. Believe whatever you like, but there's only one truth.

rodmsith said...

i can belive it. After all why not agree. As long as there is no punishment when they simply ignore it like they do the current law.

Who cares! They certainly won't!

They can happly keep right on violating it and locking up the wrong people with no punishment.

Plus they now get the credit with the media for being the reasonable ones and the defence side was NOT.

That will pay off bigtime down the road

Gritsforbreakfast said...

Tell us more, Shannon, what's the backstory?

Mike Howard said...

Well I'll be!

Anonymous said...

I hate to be cynical but..... I can't help but wonder if the intent was to ultimately prevent the bill from passing at all. Maybe they thought if the reciprocal discovery was removed, some would see the bill as too one-sided and vote against it. I hope that's not the case.